A Further Perspective

Targeting Free Speech

A war quietly pursued on many fronts.

By 7.13.10

Any doubts about the administration's designs on reducing First Amendment opportunities may no longer exist due to officials' remarks and government actions including a recent decision by President Barack Obama. The administration's resolve to tamp down dissent was signaled in a June 28th presidential memorandum that would lead to the end of all free, over-the-air television.

Fortunately for Obama he has various federal agencies, the Democrat-controlled Congress, a judiciary hostile to the Constitution, and a compliant liberal media at his disposal to help him usher in speech controls.

Obama's disdain of political dissent is well documented. He has differentiated himself from all other modern presidents by publicly calling out by name the handful of journalists that have criticized his presidency. Senior White House staff have served as his Praetorian Guard against media critics.

While presidential name-calling is indeed troublesome, it does not rise to the level of the concern created by the administration's plans to control the nation's telecommunications platforms.

Obama's Harvard Law School classmate and current Federal Communications Commission Chairman Julius Genachowski has been directing a multi-pronged effort aimed at increasing government control of news, information and entertainment.

First, is the FCC's ill-conceived National Broadband Plan, which is designed to end local television broadcasters' use of the electromagnetic spectrum (i.e. the radio spectrum) to deliver free, over-the-air television and eventually move the nation's 1,600 TV stations to subscription-only platforms such as cable. Cable is a much easier to control than 1,600 geographically dispersed television transmitters.

The goal, claims Genachowski, is to make the spectrum available to other wireless platforms such as cellular telephones. The single largest beneficiary of the FCC scheme would likely be Verizon. Unfortunately for Genachowski, Verizon CEO Ivan Seidenberg panned the NBP and found the FCC's "looming spectrum shortage" claims to not be credible.

"I don't think the FCC should tinker with this," Seidenberg told the Council on Foreign Relations in April. "I don't think we'll have a spectrum shortage the way [the National Broadband Plan] suggests we will."

To bolster support for its National Broadband Plan, the FCC announced a broadcast engineering panel to examine the technical aspects of its proposal. The June panel convened by the FCC was notable for who the Commission excluded -- broadcast engineers. The FCC relented at the last moment after the Society of Broadcast Engineers waged a fierce PR campaign to be added. To exclude broadcast engineers from the panel would have been the functional equivalent of bureaucrats rewriting detailed medical procedures without consulting a single doctor.

In all fairness, convening the engineering panel -- even with the technical experts -- was a moot point. Days earlier, the FCC inadvertently disclosed a report prepared by staff bureaucrats that had reached conclusions before the engineering panel had met. The after-the-fact panel may have been an attempt to rubber stamp the FCC proposal. However, the FCC's report was criticized as being flawed on several technical accounts including having omitted key data.

Another point of concern is the FCC's "Future of the Media" inquiry. Not only does this effort fall well-outside the agency's statutory charter but the FCC does not have any of the expertise to properly evaluate the information the agency intends to collect such as company business models, corporate debt levels, newsroom staffing policies, and even print industry operations.

According to an FCC Public Notice, the project "will produce a report providing a clear, precise assessment of the current media landscape, analyze policy options and, as appropriate, make policy recommendations to the FCC, other government entities, and other parties."

Former Newsweek reporter Steve Waldman, who is the public face but not the hand behind the study, told a skeptical industry gathering in April that the FCC was merely preparing a report and had no plans to initiate a regulatory rulemaking.

The FCC is not the only government agency inappropriately "studying" journalism. The Federal Trade Commission, also singularly unqualified and without statutory authority, launched its own effort. The FTC's "Reinvention of Journalism" discusses several proposals to "reinvent" journalism, including some that would drastically alter the media landscape and severely impede a free press.

For example, the FTC offers the possibility of copyrighting "facts or ideas" that would not only severely restrict the press and the public but could also lead to the government releasing "facts" only to politically allied news organizations. The FTC study contemplates various subsidy options, primarily for the newspaper industry. Other FTC proposals include expanding AmeriCorps into journalism and growing the size and scope of the Corporation of Public Broadcasting; in other words, vastly increasing government control of news.

Creating government operated news is a recurring theme found throughout proposals offered by the Obama Administration, its senior staff and by sympathetic political groups.

Moving all news, information and entertainment content to broadband platforms is fraught with danger, considering the rest of the administration's scheme. Lawrence Strickling, whose position as the Assistant Secretary of Commerce for Communications and Information makes him the principal advisor to the president on telecommunications and information policy, has proposed the government regulate Internet content.

"We need Internet Policy 3.0," he announced earlier this year, "… [because] we rely on the Internet for essential social purposes: health, energy, efficiency and education." He added, "There [should] be rules or laws created to protect our interests."

Strickling's proposal got a boost when the FCC's three Democrat Commissioners voted in lockstep to launch an effort to reclassify the Internet by moving it from the lightly regulated Title I to the heavily regulated Title II section of the federal statute that governs the FCC's activities. Title I prohibits the FCC from exercising considerable regulatory authority over information systems. In contrast, industries such as telephony that fall under Title II are heavily regulated by the FCC.

While the administration desires to regulate content, leading Congressional Democrats propose giving the president authority to shut down the Internet and other communications platforms altogether.

Senator Jay Rockefeller (D-WV) introduced the "Cybersecurity Act of 2009 (S.773)" last year. Among the troubling provisions is one that would give the president the authority to disconnect public and private information technology systems "in the interest of national security." Presumably it is up to the president to decide what constitutes a nation security concern precipitating the shutdown of private IT systems. The president could designate any private IT system as having to comply with his order. The president could also "order the limitation or shutdown of Internet traffic" during an undefined "cybersecurity emergency."

Rockefeller displayed his antagonism toward the web when he asked during a 2009 hearing, "Would it had been better if we'd have never invented the Internet?" Rockefeller's view is almost understandable when students and citizen journalists videotape Congressional Democrats and White House supporters behaving badly.

Not to be outdone, Senator Joe Lieberman (I-CT) introduced a much more expansive measure. "Protecting Cyberspace as a National Asset Act 0f 2010 (S.3480)" ostensibly tackles network vulnerabilities. It gives the president "kill switch" authority to shut down the Internet for up to 30 days at a time and is renewable in perpetuity as long as the president certifies an undefined "national cyber emergency" exists.

As an aside, the single largest culprit when it comes to network vulnerabilities is the federal government. For the feds to lecture private industry in protecting their networks is patently absurd.

More trouble may be on the horizon as the House and Senate Commerce Committee chairmen announced in May their intention to "update" the Communications Act, which governs all communications policy in the U.S.

Threats against free speech become more ominous when key administration officials feel comfortable publicly calling for restrictions on the First Amendment.

Cass Sunstein, the head of the White House Office of Information and Regulatory Affairs, is hostile toward the First Amendment. He has argued in favor of government "subsidised (sic) programming," "the government might impose 'must carry' rules on the most popular Websites, designed to ensure more exposure to substantive questions[,]" and the government implement a "Fairness Doctrine" for the Internet requiring some websites to offer opposing viewpoints. One can easily imagine which websites would be mandated to carry opposing viewpoints.

Another First Amendment opponent is FCC Chief Diversity Officer and the individual behind the "Future of the Media" study, Mark Lloyd. In his 2006 book Prologue to a Farce Lloyd wrote, "[M]y focus here is not freedom of speech or the press. This freedom is all too often an exaggeration." He also asserted, "the purpose of free speech is warped to protect global corporations and block rules that would promote democratic governance."

Two years ago, Lloyd applauded Venezuela's Hugo Chavez when the strongman began his two-year run of closing down nearly every single privately owned media outlet in Venezuela, ending press criticism of his government. Lloyd cheered Chavez imposing "an incredible revolution -- a democratic revolution. To begin to put in place things that are going to have an impact on the people of Venezuela."

There is little doubt that Lloyd, Sunstein, Genachowski and others throughout the Obama Administration and in Congress harbor similar hostility toward the First Amendment, a free press and popular dissent in the U.S.

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About the Author
Mark Hyman hosts "Behind the Headlines," a commentary program for Sinclair Broadcast Group. You can follow him on Twitter at @markhyman.